David V.: I still don’t get this tack. If you choose not to participate and pay the tax, your records are not revealed to anyone. And when you do choose to participate, your records do not get revealed to the government. Same as now.

ObamaCare includes the establishment of massive databases of everyone’s medical information. You will not be able to opt out and your entire medical history will be available to the government. This is being required so that government can control medical care with clinical guidelines and pay-for-performance penalties on physicians and other providers.

In general, private insurers have access only to previous claims data and individually reported history for underwriting purposes and many states limit disclosure periods to 10 years. ObamaCare includes no such privacy protections and in fact makes everyone’s medical record public property.

The claims on this thread that say that the mandate fee/penalty/tax is a head tax are also wrong. The fee/penalty/tax does not apply to people who have certain narrowly defined religious exemptions, people who “can’t afford coverage” as defined by federal poverty guidelines which themselves have significant problems, illegal aliens, members of Indian tribes, or people who meet some yet to be administratively determined hardship exemption.

As some of these exemptions are not dependent on income it is not an income tax. It is also not a head tax as some heads are more equal than others.

What it is is a big, fat, mess of historic proportions.

TR: Medicare Part A is mandatory. If you do not sign up for Medicare, ever since Clinton, you will not get “Social Security” payments.

TR, your comment is not on point. Simply put, I will not be fined if I choose NOT to take advantage of Medicare. I simply am not obligated, as a matter of law, to use Medicare.

Michael

Here is my post on Ron Paul’s site:

“Just ask Alexander Hamilton, George Washington, and the High Federalists, such as: Ames, Jay, Witherspoon, Stockton, Adams, Pickering, et al. who passed the Bank of the United States.

Hamilton’s defense of the Bank is in Article I, Section VIII, the last clause. Hamilton called it “implied powers” He shot down Jefferson’s defense, saying the government wouldn’t work if strictly left to “enumerated powers” leaving us to be an agrarian society, which is what the infidel Jefferson wanted.

The Constitutional mandate for the bill is called “taxes” not interstate commerce; the liberals have no idea about the Constitution anyway.

Hamilton said as long as a bill does not violate the Scriptures, or Divine Law, it’s fine.

Deutoronomy 15 implys the government provide for the poor, as the text says, “you can trade with other nations.”

How can individuals trade with a nation?” The context appears to be in a governmental context of Israel.

Don: One of the things I was thinking about, as opposed to the broad constitutional issues, is something as simple as somebody getting whacked financially due to the healthcare bill, which gives them standing.That prompted me to wonder, Can a shareholder of a public company that just announced a charge to their balance sheet sue the government because the healthcare bill changes the original deal by withdrawing the tax-free status of the rebates?Or, could a shareholder sue the companies for maintaining those plans after the government changed the after-tax costs of maintaining the plans?

One aspect of standing is the ability of a court to order a remedy that would address the wrong of which the plaintiff complains. In the above hypotheticals, what relief would the plaintiff request that would support an allegation of standing?

That prompted me to wonder, Can a shareholder of a public company that just announced a charge to their balance sheet sue the government because the healthcare bill changes the original deal by withdrawing the tax-free status of the rebates?

Or, could a shareholder sue the companies for maintaining those plans after the government changed the after-tax costs of maintaining the plans?

dagny: Isn’t Roe v Wade based on a woman’s right to privacy. Since Obamacare violates privacy rights how will this effect Roe v Wade?

That’s a great sound bite, but it’s obviously frivolous. Marriage and parenting are much closer to abortion than health insurance is, and the government encourages both of those with tax policies that are only considered of questionable legality by crazy people.

“What you’d be looking at, instead, is allowing the judiciary to go back to finding more rights– either “ordered liberty” or “natural law” or “rooted in the history and tradition of our nation” (cf. Glucksberg) or extending their antenna into the ether (19th century) or divining the inkblot of the 9th Am. etc.”

No, what I’m looking at is a constitutional convention to bring our de facto consensus on positive rights (one that I’m not particularly happy about, as in my view the enforcement of positive rights inevitably impedes the more fundamental role of government in protecting the negative ones, but that’s a question for some future generation to tackle, given the clear consensus of the present ones) more in line with our de jure constitutional structure, in order to restore the confidence of the people in both the legislative and judicial branches.

As for conservatives wishing the courts to do “less”, surely you recognize a distinction between the judiciary replacing the legislative function (i.e. legislating from the bench) on the one hand, and on the other “umpiring” the legislative function, as in Boumediene. Perhaps as a non-lawyer, I’m seeing more of a distinction there than actually exists, but it is my sense that the distinction is still an important one for the layman, however illusory it is in practice. That layman also expects the umpire to discharge his function as actively and the legislator discharges hers, with due modesty to be sure, but no more.

If, however, the rulebook no longer reflects the spirit of the game, the time comes to change the rulebook, not for the umpire to bend the rules, or even to look the other way in a misplaced sense of “judicial modesty” while the players break them. If we are to have positive rights, let us have them, within broadly agreed upon limits*, so as to free both of legislature and judiciary from having to play the games they do to get around our not having them, and thus from the malus such games produce.

* – the consensus already exists, it’s what drives the games in the first place.

“I think that a worse outcome (for conservatives) is that it succeeds– and we get a spiffy new constitutional bill that doesn’t need mandates….”

Hence my sudden enthusiasm for limited positive rights – in lieu of unlimited ones, which tend in time to devolve into negative wrongs, without much exception.

That said, unless liberal/progressive opinion leaders can be made aware of that tendency, I don’t see much to stop the slide.

Dan Lavatan: While the mandate is clearly a tax, as the bill instituting the tax originated in the Senate it violates Article I Section 7 of the US constitution.

A bill originated in the HoR. The Senate “amended” it by replacing it with the health care bill. Personally, I think this stinks, but it’s been done before.

I disagree that the regulatory goal is legitimate and that the tax correlates with accomplishing any goal. Pissing off a large segment of the population and then handing them a blank check just means all insurance companies would go insolvent if such a program were constitutionally enacted.

You disagree that Congress has the authority to regulate the health insurance industry? By what rationale?

By “legitimate”, I don’t mean that it’s a good idea or will work. I mean that it’s within Congress’ scope of Constitutional authority if done by regulation. For example, Congress cannot implement a 100% “tax” on government payments in compensation for takings because it’s trying to use its taxing power to accomplish a goal that is not legitimate as a regulatory goal.

Where the goal is the regulation of commerce, the use of the taxing power is legitimate.

Chris Travers
Constitutionally, how would this differ (as a takings case only) from auto insurance mandates?

Automobile insurance is only mandatory if one wishes to drive an automobile.

David Schwartz: The “mandate” is actually a tax on not buying health insurance. In order to buy a house, I have to disclose all kinds of personal information to the bank. In order to get married, I have to give my spouse all kinds of legal powers over me. Both of these things have significant tax consequences.Since this is using the taxing power, implements a legitimate regulatory goal, and the amount of the tax reasonably correlates with what’s needed to accomplish the regulatory goal, I don’t see the issue. To file your income taxes electronically, you have to pass information through a third party. Would it be unconstitutional for the IRS to give you a $10 discount, comparable to the savings in not processing a paper tax return, if you filed electronically?Honestly, this argument is basically frivolous.

While the mandate is clearly a tax, as the bill instituting the tax originated in the Senate it violates Article I Section 7 of the US constitution.

I disagree that the regulatory goal is legitimate and that the tax correlates with accomplishing any goal. Pissing off a large segment of the population and then handing them a blank check just means all insurance companies would go insolvent if such a program were constitutionally enacted.

One, most states require both a licenses for the driver, a license and registration for the vehilce and some sort of guarentee of liabilty covereage to operate your vehicle on a public road way. There are no such requirements to operate a vehicle on private land as long as you have permission from the owner to do so. Because the activity involves use of a public surface the requirement is essentially a licensing of the use of that public resource.

A second point is that the state does not require that you purchase insurance. Instead it requires that you provided proof of your ability to provide a specific level of financial resources to ensure your ability to pay for the damage that you cause to others through your act of operating a motor vehicle on a public roadway. That can be a financial deposit with the state, a performance bond or other guarantee of payment or insurance. The choice is yours.

Finally you are only required to provide proof of financial ability to cover the damage and los that you inflict upon someone else. The states have no interest in your losses or financial obligations that you may incur on your own behalf. Under Obama care the argument that has been advanced is that you must but health coverage so that others will have lower health care cost.

The Obama analogy plays well with the simple minded media but the health insurance requirement is not the same as needing to prove financial ability to operate a motor vehicle on a public roadway.

Geoff: So lets make the liberals pick between Roe and health care reform.

Huh. Amazingly, there is very little about the free-floating right of privacy. We have some case law about abortions and contraception (the Griswold/Roe line of cases) and we have the sexual autonomy in the home case (Lawrence, and, perhaps, the 5th Cir. dildo case) but there is no case law supporting a completely untethered higher-level right to privacy, as opposed to more granular applications of it. So you set up a false dichotomy. This would be similar to someone mounting an attack on the income tax saying it violates the right to privacy (how much we earn and from what sources), and that we’d have to chose between Roe and the IRS.

On a more salient point that I think many conservatives are missing-

the bill that was passed was substantially similar to the GOP counter-proposal to Clinton’s failed health care plan (I think the Heritage foundation was a major intellectual contributor to it). In other words, this is a more “free-market” alternative to unviersal coverage. A plan that was single-payer and funded from general revenue would not have any of these supposed constitutional problems. But would probably be more unpalatable to conservatives.

So, what happens if, four years (or so) from now, after so many people are covered, the Court does strike it down? And people suddenly get kicked off the coverage that they had come to expect? What do you think the fix will be?

Therein lies the rub. People aren’t happy with some of the provisions of this bill (and I can understand, as this was a horrible compromise). But overall, the American people do want comprehensive health care coverage. The GOP did nothing during their time in power. While I think that a constitutional challenge is doomed to fail (I agree with Dilan on that), I think that a worse outcome (for conservatives) is that it succeeds- and we get a spiffy new constitutional bill that doesn’t need mandates….

And to those of you who are claiming that it is not a tax because the law says it is not a tax are just plain silly. Calling it something else in no way changes what it functionally is.

Austin: What would the Court say about a $750 (and up) tax on abortions? Would they say it is a reasonable/not undue burden? Of course not. They would drop the strict scutiny hammer on that in a second. 

Yes, because it is singular almost never used(comparatively) procedure. The tax imposed (if you can afford to pay it) is for a pool that goes to every procedure, including the one who pays the tax when they have to go to the emergency room. Reasonable.

Hyphenated American: Are you saying that the government can fine you $10,000 if you refuse that a private company were allowed to listen and record all of your phone calls — and this would be Constitutional?

No. Where is the public welfare protected in them listening to everyone’s phone calls? Where is Commerce? I am a novice, but this feels like a specious argument.

And for the nth time, I despise this bill(PPACA). But not because it’s potentially legally flawed but because it is logically and economically flawed. To achieve both goals, Single Payer is precisely what the country should have done and eliminated the notion that health is an insurable thing.

What would the Court say about a $750 (and up) tax on abortions? Would they say it is a reasonable/not undue burden? Of course not. They would drop the strict scutiny hammer on that in a second.

With the individual mandate, the government is forcing you to pay $750 (or more) in order to exercise your right to keep the most intimate details about your body to yourself. Surely strict scrutiny would apply. Of course, the feds might be able to make a decent argument that they pass strict scrutiny. That’s another question.

To the extent disclosure of personal information was a prerequisite to purchasing health insurance in the past, it would seem to be of little purpose going forward given the ban on discrimination due to pre-existing conditions.

Indeed. When I first moved to MA, before the Romney legislation, the state had community rating. When I applied for an individual policy I was astonished that the “application” wanted only my name, address, age, maybe SSN, and asked me to confirm that I was a full-time resident of MA. That’s it.

“In other forms of insurance, disclosure is required for pricing and pooling, etc., but does health insurance”

When you enter into a group plan, like with an employer, yes. If you try to buy
your own 1 person policy, they ask a lot of questions.

“But there are a number of reasons I don’t find this to be a valid comparison– namely you are not compelled ever to share your medical records with the government regardless of your choice to pay the tax or not. And your example clearly does directly violate privacy. ”

Where does the Consitution differentiate between the enforcement of sharing your most intimate private information with private or government entitites? Are you saying that the government can fine you $10,000 if you refuse that a private company were allowed to listen and record all of your phone calls – and this would be Constitutional?

JonC: Could a ‘taxpayer’ get insurance, without disclosing any personal information? If health-insurers are unable to refuse an application due to preexisting conditions, then would they also be forced to provide insurance to an applicant that provides no personal information of any kind?

Admirer: American Cartographers Act

Ha. Nice.

This is a very good question. The providers are private companies and can set the requirements, no?

Austin: “If you choose not to participate and pay the tax, your records are not revealed to anyone.”But you have to pay a tax/fine in order to not participate.How does that not burden your right to keep your private info to yourself?

I think we’re veering in to reasonable/unreasonable burden here. I get what you are saying but it’s not very strong – it seems a reasonable burden.

In other forms of insurance, disclosure is required for pricing and pooling, etc., but does health insurance? The health plans I’ve been on have never asked for “personal” information at all other than the usual address, SSN, phone numbers. It’s life insurance that’s snoopy with regard to blood tests, prior surgeries, family health, etc. I haven’t read the American Cartographers Act, so clue me in.

Hyphenated American: David,why can’t same argument be used for warrantless wiretapping? All citizens may be told either to give government authority to listen and record all your phone conversations, or you are forced to pay $10,000. Would this be legal, in accordance with US Consitution?

No. But there are a number of reasons I don’t find this to be a valid comparison- namely you are not compelled ever to share your medical records with the government regardless of your choice to pay the tax or not. And your example clearly does directly violate privacy.

But thankfully, The Patriot Act legalized(legitimized?) warrentless wiretapping and all we had to pay for was the creation of DHS.